SV-POW! … All sauropod vertebrae, except when we're talking about Open Access

A loophole in PLOS’s use of the CC By licence

July 3, 2013

Christopher W. Schadt tells a distasteful story over on his blog, about how a PLOS ONE paper that he was a co-author on was republished as part of a non-PLOS printed volume that retails for $100. The editors and publishers of this volume neither asked the authors’ permission to do this (which is fair enough, it was published as CC By), nor even took the elementary courtesy of informing them. Worse, the reprinted copy in the book doesn’t have a reference to the original version in PLOS ONE.

It’s clear the editors of this book have (to put it mildly) been rather rude here. But what they’ve done is possibly legal and in accordance with the terms under which the article was originally published. The CC By licence requires attribution, and sure enough the work is attributed to the correct authors.

But does CC By require that the original publication also be credited? Not exactly. The terms of the licence say that the work can be reused subject to this condition:

Attribution — You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work).

So the author could specify (and PLOS should probably specify in the published form of their articles) that the manner in which the work should be attributed requires not only authorship to be recognised but also the original publication in PLOS to be cited.

But the current PLOS wording on this is unfortunately a mess. Schadt’s article, like all PLOS ONE articles, says:

This is probably intended to say that attribution must mention both author and source (i.e. citation of original publication). But what this wording actually does, wrongly, is state that this is what the CC BY licence intrinsically requires.

All three of these publishers, and probably many others using CC By, need to tighten their wording so that they don’t claim that CC By requires a full citation, but stipulate that in their use of CC By, providing a citation is part of what constitutes proper attribution.

Had PLOS ONE done that, then the reprinted version of the Reganold et al. paper would have been clearly not covered by the CC By licencing option, and so would have constituted copyright violation plain and simple. As it is, they’re clearly guilty but have some wiggle-room. (To be fair, representatives of the production company and publisher have been quick to apologise on Schadt’s blog.)

And thank you for bringing this to the world’s attention. You’ve really made people (including of course the republisher) sit up and think, to everyone’s advantage. I hope you’re pleased by the promised outcome.

Not all the licenses of the oa material published in that collection are so loose. For example, the article on Biochar originally published in PMC is licensed thus:
“Copyright This is an Open Access article: verbatim copying and redistribution of this article are permitted in all media for any purpose, provided this notice is preserved along with the article’s original DOI.”http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2649247/
Neither notice nor DOI are in the book, as the publishers have admitted.

Thanks for that clarification, John. I think the broader point here is that legacy publishers have a tendency to look at anything open access and think “Great, we can do whatever the heck we like with this”. It’s an extraordinary attitude, when you compare it with how they react to people using their material.

If you make it CC-BY, then to an extent people can do whatever they want with it – including profit from it.

Attribution is required though, and on reading this, I would say that the wording doesn’t need to be tightened up – what has happened is clearly wrong. The source is not properly attributed, and (without seeing the reprint) therefore sounds like it appears to endorse the reprinting – both of which are against the terms of CC-BY.

I would interpret this case to say that if someone wanted to reprint the article, they should both provide attribution of the source (citation), and make it clear that they are reprinting without permission, but in accordance with the terms of CC-BY.

If you want to prevent people doing this, then use CC-BY-NC. That doesn’t preclude you from granting rights to individual requests to use the work commercially, but it does preclude anyone from doing so without at least asking first.

Graham, you are of course right that licencing a work CC By means that people can do almost anything with it, including profiting. That’s not a bug, it’s a feature. But, by design, the one thing people can’t do with it is strip attribution. What’s less widely recognised is that the licensor can specify the form the attribution must take. So if I say “you’re welcome to use this comment however you wish, so long as you attribute it to Lord High Inquisitor Mike Taylor” then you either attribute it thus or you don’t use the work.

There is no such thing as “reprinting without permission, but in accordance with the terms of CC-BY”. The whole point of CC By is to give permission. So long as you abide by its terms, you already have permission.

Agreed, but one of the terms of CC-BY is “but not in any way that suggests that they endorse you or your use of the work”. Maybe simply saying “Reprinted from , in accordance with the terms of CC-BY”, would be enough to give both attribution, and clearly not suggest that the use was [explicitly] endorsed.

I’m not suggesting that a specific wording is necessary, just expressing a thought.

In my day job I’ve learned to always go to the legal language rather than to a summary of it, so I took a quick look at the actual CC BY licence terms, with it being section 4(b) that is relevant here.

In 4(b)(i) there is (excess legalese omitted):

“You must … provide … if the Original Author and/or Licensor designate another party … (e.g., a sponsor institute, publishing entity, journal) for attribution … in Licensor’s copyright notice … the name of such party …”.

There’s no point in including that bit if the stuff on endorsement (last sentence of 4(b) for those playing at home) were sufficient to require original sources to be credited. So the CC BY licence is leaving it up to authors or original icensors to say who besides authors has to be credited.

So, PLOS could make it clear their journal should be credited by going with a copyright notice like this:

None of that’s legal advice, but I’ve done a good bit of work on IP issues in contracting and it’d be a start for the lawyers.

BTW, I can’t blame anyone for not diving into the actual licence. I’m trained as a lawyer and my eyes wanted to bounce off it. It seems to be laid out in such a way as to positively discourage anyone, including lawyers (as opposed to the humans CC produces it’s “human-readable” summary for), from making the effort to read them. And don’t get me started on the twee use of “You” as a defined term for “licensee”.

While we’re on the subject, I really wish these journals would do a better job of indicating the licensing for the figures, which are often (but not always) different from that of the paper itself. This is a frequent problem for me when adapting works for PhyloPic.

Why does it matter whether the original journal is credited? Is this because they contributed to it by editing? Or because citations traditionally included the journal (though that’s a historical relic now, like citing the city where a publisher is headquartered)?

Why does it matter? First, because it matters to the author (who is also the copyright holder) — that should be reason enough.

But for the rest of the scholarly community, don’t you think it’s better that all the citations to this work should be to the original publication, and not split between the original and the reprint? That would certainly be more transparent and easier to interpret. (And for what it’s worth, the author feels that one highly cited paper is worth more to his career that two medium-cited papers.)

Certainly I as an author would be upset to cite someone’s paper in (say) the Thunder Lizards volume, only to find it was an unauthorised and uncredited reprint from a journal.